Complaint Statement to Kashi District People's Court on Detention of Alimujiang Yimiti Beyond the Legally Prescribed Time Limits

China Aid Association
Complaint Statement to Kashi District People’s Court on Detention of Alimujiang Yimiti Beyond the Legally Prescribed Time Limits

March 20, 2009

1. Review on Alimujiang’s case and his detention have seriously gone beyond the legally prescribed time limits.
Alimujiang Yimiti was placed under criminal detention in Kashi area, Xinjiang on January 12, 2008 on groundless charges. On February 20 of the same year, he was arrested. After the court opened on May 27, nothing has been heard of him. It is almost 10 months since May 27, 2008. For this case, the court has neither notified people of when it will open or rule that the procuratorate shall withdraw this lawsuit. It does not release the defendant either. The case has been going on in this way, throughout the duration of Alimujiang’s detention and arrest without any conclusions and the procuratorate has not withdrawn the lawsuit. If the court, at that time, based its action on Article 153 of the “Supreme People’s Court’s Interpretation of Several Issues Regarding the Implementation of the Criminal Procedure Law of the People’s Republic of China,” then the court has long exceeded the time prescribed for the review of the case, because the time for the adjournment should include the review period as articulated in the law. Furthermore, even if the period of review is approved by the Supreme Court of the autonomous region, it is limited to two and a half months at the maximum. Yet, it was not even approved by the Supreme Court of the autonomous region. Even if the public prosecutor finds the evidence is insufficient and requires supplementary investigation, they can propose an extended review pursuant to Article 157 of the “Supreme People’s Court’s Interpretation of Several Issues Regarding the Implementation of the Criminal Procedure Law of the People’s Republic of China” upon approval by the People’s Court. Even by doing so, it has also exceeded the time limits as prescribed by the law.
Article 157 of the “Supreme People’s Court’s Interpretation of Several Issues Regarding the Implementation of the Criminal Procedure Law of the People’s Republic of China” states that “If the public prosecutor finds supplementary investigation is needed for a case during its court trial and proposes an extension for the review, the collegial panel should agree to it. However, proposals for extension in hearing of the case shall not exceed two times. If a people’s procuratorate fails to apply at a people’s court to resume the court trial during the time prescribed for the supplementary investigation after the court announces the extension in hearing the case, the people’s court should then handle the case as if the people’s procuratorate had withdrawn the lawsuit. Is the period for the procuratorate’s supplementary investigation really overdue? Let’s look at this: It is stated in Article 140 of the “Criminal Procedure Law of the People’s Republic of China” that “For cases reviewed by a people’s procuratorate that need supplementary investigation, they can be returned to public security organs for the supplementary investigation or the procuratorate can also conduct the supplementary investigation itself. Cases that need supplementary investigation should be complete within a month and there shall be no more than two supplementary investigations. After the supplementary investigations are complete and are transferred to a people’s procuratorate, the procuratorate must recalculate the time limit for the prosecution.” Even if we calculate the time for two supplementary investigations, the maximum time is two months. Even if we regard this case as an important and complicated one, the maximum time for each hearing and prosecution is one and half a months according to Article 138 of the “Criminal Procedure Law of the People’s Republic of China.” If we recalculate the time for the hearing and prosecution, the total length of time for the two hearings and prosecutions is only three months. If we add the maximum length of time for the supplementary investigations, the total maximum length of time is five months. According to Article 168 of the “Criminal Procedure Law of the People’s Republic of China,” the time for a court to hear a case must not exceed one and half a months and it can be extended by one month upon approval by a supreme people’s court. Altogether, it is only two and half a months. Even if we recalculate the length of time allowed for hearing the case and even if it is approved once again by a supreme people’s court which would add an additional two and a half months, the maximum length of time for hearing a case is only five months. The total length of time above is 10 months. This means that under the most particular circumstances, and supposing it is approved by a people’s court at a higher level, the trial of first instance of this case should have been complete in no more than 10 months from the last court day in which it was announced that the hearing of this case was to be delayed. However, we have learned that this case has only been returned once for the supplementary investigation, and the extension was not approved by the Supreme People’s Court of the autonomous region. In this way, the maximum length of time for the supplementary investigation is one month, plus a maximum one and a half months for the review and prosecution plus a maximum one and a half months for the hearing, the total maximum legal length of time prescribed for this case is four months. That is to say, the period from May 28 to September 27 is the legal period for hearing and detention. Any time after September 28 is overdue time and the detention becomes illegal. Therefore, this case has seriously exceeded the legally prescribed time limit, and the detention of Alimujiang has seriously exceeded the time limit.
2. Your court has the obligation to correct this over-detention.
Article 2 of the “Notice from the Supreme People’s Court on Implementing 10 Systems to Prevent New Over-detentions” promulgated on November 30, 2003 states: “Defendants who have been detained beyond the legally prescribed time limit should be released as provided by the law; if a case for which the defendant is detained cannot be solved within the legally prescribed time and needs further hearing, the compulsory measure should be changed according to law.” Article 6 of the same notice states: “When a people’s court hears a criminal case, it should punish the criminal and safeguard human rights. If the person is found guilty, she or he should be punished by the law. If the person is found not guilty, she or he must be released.”  Now, your court neither opens the court for trial within the legally prescribed time nor releases the detained person. This does not conform to the above stipulations.
Article 1 of the “Notice from the Supreme People’s Court on Clearing Cases of Over-detention” promulgated on July 29, 2003 states: “Over-detention violates the legitimate rights of the defendant and affects the image of the people’s courts and the state. This type of detention does not conform to requirements specified in the people’s courts’ working subject of being ‘just and effective’€¦ People’s courts at all levels should pay serious attention on the problem of over-detention, and deeply realize its risks and the importance and urgency of solving the problem of over-detention and should strictly implement the relevant regulations in the Criminal Procedure Law in order to safeguard the legitimate rights of the defendants.” Article 2 of this same notice states: “For cases that need coordination with the public security agencies and people’s procuratorates, they should strengthen their communication and consultation with each other. When it is necessary, they should seek help from the local committee for political and legal affairs and coordinate with each other in solving the problem. If the procuratorate tries to shuffle the matter, then the matter should be submitted to the committee for political and legal affairs for solution.”
Article 2 of the “Notice from the Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security on Strictly Implementing the Criminal Procedure Law and on Preventing and Correcting Over-detention” promulgated on November 12, 2003 states: “During the period of trial, a people’s court should strictly abide by the provisions set forth in the criminal procedure law on the time limits on hearing a case; for the hearing of cases that need to extend by one month, it falls into one of the circumstances described in Article 126 of the Criminal Procedure Law and it should be approved or decided by the supreme people’s court of the province, autonomous region or municipalities directly under the Central Government. For anything that does not conform to the provisions in the Criminal Procedure Law on recalculating the time limits of detention of the criminal suspect or defendants, one must not recalculate the time limits of the detention. One must not abuse supplementary investigations, withdrawal of lawsuit and change of jurisdiction and other manners to engage in over-detention in disguised form of the suspects or defendants.”
At this stage, whether we judge from the legal perspective or from a perspective of disguised detention, this case has seriously gone beyond the legally prescribed time limits. Your court has the obligation to correct the problem in accordance with the above provisions.
3. People in charge of this case and other people directly involved in this case should be investigated according to law for their criminal liabilities, malpractice and abuse of power.
The Supreme People’s Court, the Supreme People’s Procuratorate, Ministry of Public Security and the Committee for Internal and Judicial Affairs under the National People’s Congress have repeatedly demanded the prevention of the illegal practice of over-detention and have sent people for inspections. Yet, the practice is not effectively contained. The reason is the people responsible for the illegal detention are not punished sufficiently. That is why the Central Government is stepping up its crackdown.
Article 5 of the “Notice from the Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security on Strictly Implementing the Criminal Procedure Law and on Preventing and Correcting Over-detention” states: “Over-detention violates the legitimate rights of the criminal suspect and the defendant. It brings harm to the fairness of justice and must be dealt with seriously, and we must not be indulgent toward the perpetrators. After this notice is made public, superintendents in charge of the detention and other people directly responsible in detention of the criminal suspect and defendant beyond a time limit shall receive an administrative or disciplinary penalty by their work unit or superiors in accordance with relevant regulations. If circumstances are serious in causing detention of the criminal suspect and defendant beyond the legally prescribed time limits, the superintendents and other people directly responsible for it shall be investigated for their criminal liabilities in dereliction of duty or abuse of power in accordance with the provisions set in Article 397 of the Criminal Law.
Article 10 of the “Notice from the Supreme People’s Court on Implementing 10 Systems to Prevent New Over-detentions” states: “Superintendents and other people responsible in the cases who intentionally violate the provisions specified in the “Criminal Procedure Law” and “Notice from the Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security on Strictly Implementing the Criminal Procedure Law and on Preventing and Correcting Over-detention” and who cause over-detention of the defendant shall receive administrative penalty or disciplinary penalty by their work units or their superiors. Those who have committed crime shall be investigated for their criminal liabilities in accordance with law.”
Article 10 of the “Notice from the Supreme People’s Procuratorate, Supreme People’s Court and Ministry of Public Security on strictly Implementing provisions in Criminal Procedure Law on time limits of detention of criminal suspects and defendants and resolutely correct the problem of over-detention” states: “Those in charge of the case who do not correct the problem in one month and those who cause disability, death and other serious consequences in the detained person shall be investigated for their liabilities therein.”
Therefore, we request your honorable court to strictly enforce these provisions of the central judicial organs and supervise the people in the relevant field and correct their problems based on the guideline of “learning from past mistakes and avoiding future ones, and curing the sickness to save the patient,” a famous saying from the history of the Party. For those who refuse to abide by the provisions, they should be investigated for their criminal liabilities in dereliction of duty or abuse of power.
4. There really exists a tendency in the Xinjiang area of directly fighting the Party and indirectly betraying the country. We request that leaders in the relevant field to pay close attention to this.
The Criminal Procedure Law of the People’s Republic of China and other laws are drawn up under the leadership of the Central Party Committee and is the concentrated reflection of the Party’s will, not the reflection of any individual’s will. Abiding by the law means endorsing and supporting the Party. However, Alimujiang’s attorney saw many phenomena in Xinjiang area where people defy the state’s laws and do not abide by them. Last year, as he went through Urumqi, some locals told him that the former first general secretary of the Municipal Party Committee of Urumqi once said to the common people: “There is no official law in Urumqi.” In a procuratorate in Yili’s Kazak Autonomous Prefecture, he heard a procurator of the procuratorate say that the Criminal Procedure Law does not quite apply in Xinjiang. In a case in which the procuratorate found the evidence of the crime of the defendant could hardly support their charges and withdrew the lawsuit, a person in a public security department still refused to release the defendant. All these are conducts that defy the law. Just as Cheng Hai, a patriotic attorney from Beijing, said: “Defying the law drawn up under the leadership of the Party means objecting to the law drawn up by the Party that reflects the will of the Party, weakening and inflicting harm to the authority of the Central Party Committee. Its essence is opposition to the Party.”
In Xinjiang where there is a complicated relationship between the ethnic groups, only by regarding the law drawn up under the leadership of the Party as holy and inviolable can we ensure that peoples of various ethnicities can most effectively form a united big family. Some secessionists detained in a detention center in Xinjiang once claimed: “We don’t recognize their law.” In comparison, defying the state law is defying the authority of the Central Government, and it can only encourage the secessionist sentiments. Some secessionists hidden there are really thinking and planning far ahead. They want the law of the Central Government to lose its authority by not abiding by the national law. In this way, they can damage the image of the judicial organs and the state and make peoples of various ethnicities to lose a centripetal uniting force so as to achieve their goal of indirect treason.
The Supreme People’s Court, Supreme People’s Procuratorate and Ministry of Public Security have long realized the great potential harm to the state organs and the state itself of not abiding by the Criminal Procedure Law. They have on many occasions issued documents both individually and in conjunction with each other and demand the people to strictly abide by the corresponding provisions in the law. For example, Article 1 of the “Notice of the Supreme People’s Court on Clearing Cases of Over-detention” states: “Over-detention violates the legitimate rights of the defendant and affects the image of the people’s court and the state.”  This is a realization from a political perspective of the harm of not strictly enforcing the central law. Situated in the western region of our motherland, Xinjiang is the western gateway to China, and it should all the more regard the central law as holy. Any conduct in which people take the matters into their own hands and regard the central law as a toy is not permitted.
As a modern non-religious country, China should all the more not allow people to replace the central law with a religious law and should not allow people to practice a religious law through the state’s judicial organs to undermine the law of the state. The Constitution clearly stipulates that citizens have the freedom of believing in a religion and the freedom of not believing in a religion. This also implies that they have the freedom of changing their religious beliefs.
We hereby request that Party committees everywhere to stand out and defend the law and also defend the authority of the Party in the meantime.
Family of Alimujiang
cc: Supreme People’s Court, Prisons and Reformatories Procuratorial Department of Supreme People’s Procuratorate, Committee for Internal and Judicial Affairs under the National People’s Congress, Higher People’s Court of Xinjiang Uyghur Autonomous Region and Higher People’s Procuratorate of Xinjiang Uyghur Autonomous Region.
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